[Introduced February 14, 2013; referred to the Committee on
Education; and then to the Committee on Finance .]

____________

A BILL to amend and reenact §18-20-1 and §18-20-5 of the Code of
West Virginia, 1931, as amended, all relating to requiring the
State Board of Education be responsible for the funding of all
special programs for exceptional children; and requiring the
State Superintendent to be responsible for the payment for
those programs.Be it enacted by the Legislature of West Virginia:
That §18-20-1 and §18-20-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.§18-20-1. Establishment of special programs and teaching services
for exceptional children.(a) In accordance with the following provisions, county boards
of education throughout the state shall establish and maintain for all exceptional children between five and twenty-one years of age
special educational programs, including, but not limited to,
special schools or classes, regular classroom programs,
home-teaching or visiting-teacher services for any type or
classification as the state board shall approve. Special
educational programs shall continue to be provided to those
children who are at least twenty-one years of age and enrolled in
the above mentioned "special education program" prior to September
1, 1991, until they reach twenty-three years of age. Provisions
shall be made for educating exceptional children (including the
handicapped and the gifted) who differ from the average or normal
in physical, mental or emotional characteristics, or in
communicative or intellectual deviation characteristics, or in both
communicative and intellectual deviation characteristics, to the
extent that they cannot be educated safely or profitably in the
regular classes of the public schools or to the extent that they
need special educational provisions within the regular classroom in
order to educate them in accordance with their capacities,
limitations and needs: Provided, That for the school year
beginning on July 1, 1990, provisions shall be made for educating
exceptional children, including the handicapped, the gifted in
grades one through eight, the pupils enrolled on July 1, 1989, in
the gifted program in grades nine through twelve and the
exceptional gifted in grades nine through twelve. The term "exceptional gifted" means those students in grades nine through
twelve identified as gifted and at least one of the following:
Behavior disorder, specific learning disabilities, psychological
adjustment disorder, underachieving, or economically disadvantaged.
Exceptional gifted children shall be referred for identification
pursuant to recommendation by a school psychologist, school
counselor, principal, teacher, parent or by self-referral, at which
time the placement process, including development of an
individualized education program, and attendant due process rights,
shall commence. Exceptional gifted children, for purposes of
calculating adjusted enrollment pursuant to section two, article
nine-a of this chapter, shall not exceed one percent of net
enrollment in grades nine through twelve. Nothing herein shall be
construed to limit the number of students identified as exceptional
gifted and who receive appropriate services. Each county board of
education is mandated to provide gifted education to its students
according to guidelines promulgated by the state board and
consistent with the provisions of this chapter. Upon the
recommendation of a principal, counselor, teacher and parent, a
student who does not meet the gifted eligibility criteria may
participate in any school program deemed appropriate for the
student provided that classroom space is available. In addition,
county boards of education may establish and maintain other
educational services for exceptional children as the State Superintendent of Schools may approve.(b) County boards of education shall establish and maintain these
special educational programs, including, but not limited to,
special schools classes, regular class programs, home-teaching and
visiting-teacher services. The special education programs shall
include home-teaching or visiting-teacher services for children who
are homebound due to injury or who for any other reason as
certified by a licensed physician are homebound for a period that
has lasted or will last more than three weeks: Provided, That
pupils receiving such homebound or visiting-teacher services shall
not be included when computing adjusted enrollment as defined in
section two, article nine-a, chapter eighteen of this code. The
state board shall adopt rules to advance and accomplish this
program and to assure that all exceptional children in the state,
including children in mental health facilities, residential
institutions and private schools, will receive an education in
accordance with the mandates of state and federal laws: Provided,
however, That commencing with the school year beginning on July 1,
1991, all exceptional children in the state in foster care and
correctional facilities will receive an education in accordance
with the mandates of state and federal laws. (c) All special educational programs, including, but not
limited to, special schools or classes, regular classroom programs,
home-teaching or visiting-teacher services for any type or classification that the state board approves pursuant to this
section shall be funded by the state board.§18-20-5. Powers and duties of state superintendent.
(a) The State Superintendent of Schools shall organize,
promote, administer and be responsible for:
(1) Stimulating and assisting county boards of education in
establishing, organizing and maintaining special schools, classes,
regular class programs, home-teaching and visiting-teacher
services.
(2) Cooperating with all other public and private agencies
engaged in relieving, caring for, curing, educating and
rehabilitating exceptional children, and in helping coordinate the
services of such agencies.
(3) (A) Preparing the necessary rules, policies, formula for
distribution of available appropriated funds, reporting forms and
procedures necessary to define minimum standards in providing
suitable facilities for education of exceptional children and
ensuring the employment, certification and approval of qualified
teachers and therapists subject to approval by the state Board of
Education: Provided, That no state rule, policy or standard under
this article or any county board rule, policy or standard governing
special education may exceed the requirements of federal law or
regulation.
(B) The state superintendent shall annually review the rules, policies and standards of the state and federal law for serving the
needs of exceptional children enrolled in the public schools and
shall report to the Legislative Oversight Commission on Education
Accountability by December 1, or as soon thereafter as requested by
the commission, 2008, and in each year thereafter, the findings of
the review along with an accounting of the services provided and
the costs thereof for exceptional children enrolled in the public
schools of this state during the latest available school year. An
appropriation shall be made to the Department of Education to be
distributed to county boards to support children with high acuity
needs that exceed the capacity of county to provide with funds
available. Each county board shall apply to the state
superintendent for receipt of this funding in a manner set forth by
the state superintendent that assesses and takes into account
varying acuity levels of the exceptional students. Any remaining
funds at the end of a fiscal year from the appropriation shall be
carried over to the next fiscal year. When possible, federal funds
shall be distributed to county boards for this purpose before any
of the state appropriation is distributed. The state board shall
promulgate a rule in accordance with the provisions of article
three-b, chapter twenty-nine-a of this code that implements the
provisions of this subdivision relating to distributing the funds
to the county boards. The rule at least shall include a definition
for "children with high acuity needs".
(4) Receiving from county boards of education their
applications, annual reports and claims for reimbursement from such
moneys as are appropriated by the Legislature, auditing such claims
and preparing vouchers to reimburse said counties the amounts
reimbursable to them.
(5) Assuring that all exceptional children in the state,
including children in mental health facilities, residential
institutions, private schools and correctional facilities as
provided in section thirteen-f, article two of this chapter receive
an education in accordance with state and federal laws: Provided,
That the state superintendent shall also assure that adults in
correctional facilities and regional jails receive an education to
the extent funds are provided therefor.(6) Payment of all special educational programs, including,
but not limited to, special schools or classes, regular classroom
programs, home-teaching or visiting-teacher services for any type
or classification that the state board has approved pursuant to
section one of this article.
_______________________(6)(7) Performing other duties and assuming other
responsibilities in connection with this program as needed.(7)(8) Receive the county plan for integrated classroom
submitted by the county boards of education and submit a state
plan, approved by the state Board of Education, to the Legislative
Oversight Commission on Education Accountability no later than December 1, 1995.
(b) Nothing contained in this section shall be construed to
prevent any county board of education from establishing and
maintaining special schools, classes, regular class programs,
home-teaching or visiting-teacher services out of funds available
from local revenue.

NOTE: The purpose of this bill is to require the state Board
of Education be responsible for the funding of all special programs
for exceptional children. The bill also requires the state
superintendent to be responsible for the payment for those
programs.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.